“A Very British Scandal” - the introduction of no fault divorce

Miranda Green, Partner in the Russell-Cooke Solicitors, family and children team.
Miranda Green
4 min Read

Were you one of the 6.74 million viewers who watched the first episode of “A Very British Scandal”, a historical mini-series following the notorious divorce of the Duke and Duchess of Argyll during the 1960s over the Christmas period? If you were, then you will remember that their divorce played out in public and earned the Duchess the  moniker: the “Dirty Duchess.”  Fast forward to 2018 and the much-publicised case of Owens v Owens, which sparked headlines such as “Woman trapped in a loveless marriage” saw the Supreme Court uphold the decision of the trial judge and the Court of Appeal, and refuse a divorce to Mrs Owens based on her allegations of unreasonable behaviour by her husband.  

A marriage breakdown is a highly emotive time in any couple’s life. Currently, couples have to prove one of the five facts for divorce. Two of these facts, adultery and unreasonable behaviour, require the parties to play the ‘blame game’ and can increase conflict before the divorce has even begun. Following the decision in Owens v Owens there was even more concern about ensuring examples of behaviour were carefully drafted even though the reasons set out in any divorce petition rarely make a difference to any financial matters that need to be agreed.

After years of campaigning for a change in the law, on 25 June 2020 The Divorce, Dissolution and Separation Act 2020 received Royal Assent. It was hoped that it would come into force in Autumn 2021, but due to issues with the court service IT systems, and the delays caused by the pandemic it was delayed until 6 April 2022.  

The Divorce, Dissolution and Separation Act 2020 will herald the biggest reform of divorce law in 50 years. This change will also apply to civil partnership dissolution. No fault divorce will become a reality in England and Wales.

What is changing?

  • Separating couples will no longer have to rely on one of the ‘five facts’ to prove the ground for divorce. Instead, the new law will introduce the requirement to provide a statement of irretrievable breakdown.
  • Joint applications will become possible, although applicants will still be able to submit a sole application if their partner does not agree to the divorce.
  • The ability to contest a divorce, dissolution or separation will be removed.
  • Language will be updated and in plain English: ‘Decree Nisi’ will become a ‘Conditional Order’; ‘Decree Absolute’ will become a ‘Final Order’ and ‘Petitioner’ will become ‘Applicant’.
  • A new minimum period of 20 weeks from the start of proceedings to when the Conditional Order can be made will be introduced, intended to be a period of reflection for both parties to consider whether they truly want to separate.
  • The 6-week period between the Conditional Order and when the Final Order can be made will remain.

What will this mean in practice?

  • Whilst it is still likely to take around six months before you can apply for a final divorce order, the proposed changes should simplify current practices and reduce conflict between couples allowing them to focus on issues such as children, property and finances.
  • The new law will take away the need to ‘blame’ one party and will encourage a more constructive approach to separation, promoting reconciliation and reflection where possible, but ultimately trusting the judgment of the couple involved.
  • The stress and expense of potentially contested divorce proceedings will be avoided by removing the requirement for consent, admission of adultery or a level of unreasonableness.
  • There will be no minimum period of separation required if, as at present, the parties are seeking to avoid attributing blame.

This long-awaited reform to the law will enable couples to focus on positive uncoupling rather than allocating blame, especially when the parting of ways is a mutual decision and there are children involved.

By removing the need to blame one party, it is intended that the new Act will help increase the likelihood of resolving divorce matters outside of court, providing a more efficient and collaborative approach between couples and solicitors, with less confrontation.

A good divorce lawyer will listen to what is important to you and work with your spouse and their lawyer, as well as other professionals you may need to support you along the way. 

If you have any questions about the legal aspects raised above or would like help, please contact the Russell-Cooke family team. 

Briefings Individuals & families divorce separation five facts irretrievable breakdown